Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Date: 24 May 2019
• Published date: 24 May 2019
• Author: Michael Cowling
• Citation: (2004) 17 SACJ 414
• Pages: 414-439

414

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SACJ •

(2004) 17

Criminal Procedure

MICHAEL COWLING

University of KwaZulu-Natal

Appeal - notice of appeal - requirements

Section 309B of the Criminal Procedure Act 1977 requires any accused

wishing to appeal against a decision of a lower court to apply to that court for

leave to appeal. In

S

v

Steyn

2001 (1) SACR 25 (CC) the Constitutional Court

declared this provision to be inconsistent with s 35(3)(o) of the Constitution

which entrenches a right of appeal. However, s 309B(3) stipulates that every

application for leave to appeal must set forth clearly and specifically the

grounds upon which the accused desires to appeal.

(2004) 17 SACJ 414

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415

The fact that s 309B in its entirety had been set aside created a vacuum in

regard to the extent to which the specific grounds of appeal needed to be set

out. This was pointed out by

ThringJ in S v McKenzie

2003 (2) SACR 616 (C)

where the appeal notice gave the following as grounds for the appeal: Ad

Judgment (1) the state failed to prove its case beyond reasonable doubt; (2)

the defence version is reasonably possibly true. Ad Sentence (1) the

honourable magistrate misdirected himself on sentence.

The problem that confronted the court in this regard was that, in the

absence of s 309B(3), there was no longer any provision that required that

grounds of appeal be set out in a clear and specific form. This was

notwithstanding the fact that s 309B was declared to be constitutionally

invalid because the leave requirements were perceived by the Constitutional

Court to constitute an obstacle to the exercise of the right of appeal. Thus, it

is clearly apparent that this had nothing to do with s 309B(3). In this regard

the court in

McKenzie's

case commented (at 618i-j) as follows: 'I cannot for

one moment imagine that the Constitutional Court intended thereby to do

away with the requirements for the clarity and specificity with which grounds

of appeal must be set forth in a notice of appeal.'

The court cited a number of cases where grounds of appeal had been

vague and embarrassing and had consequently been struck off the roll. The

basic rationale for this is that clear and specific grounds will enable the

magistrate to set out the reasons for judgment, to inform the state of the case

that it has to meet and also to enable the judges to know beforehand what

points are to be raised.

However, it appears that in

McKenzie's

case there seems to have been

some confusion about the setting out of grounds in an application for leave

to appeal (which was contained in s 309B(3)) and the grounds contained in a

notice of appeal ie where leave to appeal is not required. The mere fact that

the requirement of leave to appeal has been set aside (which includes

s 309B(3) since it concerned applications for leave) does not mean that clear

and specific grounds of appeal need not be set out in the appeal notice. But

what is clear from the dictum in

McKenzie's

case is that broad, vague and

uninformative grounds of appeal are unacceptable.

As a result, the court ruled (at 621e) that the appeal was 'fatally defective

by reason of the inadequacy of the setting out of the grounds of appeal in

the notice of appeal'. However, the accused's counsel (who was in court on

the day to argue the appeal) submitted that he should be allowed to continue

with the appeal. The main justification for this would be that it is inherently

unfair to visit the sins of his attorney (who drew up the notice) on the

accused. The court responded by doubting that it had a discretion in this

regard but then proceeded to deal with the merits of the appeal and

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